### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 1 4

- 1159
U NITED S TATES OF A MERICA , Plaintiff

- Appellee ,

v.
O SCAR G UTIERREZ , Defendant

- Appellant

.

____________________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1: 12

- cr

- 00 209

- TWP

- TAB

- 2

— Tanya Walton Pratt , Judge

.

____________________
A RGUED J UNE 2 , 2014

— D ECIDED J ULY 29, 2014

____________________

Before F LAUM and W ILLIAMS , Circuit Judges , and D OW , District Judge

. ∗
F LAUM , Circuit Judge

. Based on a tip that Oscar Gutierrez was involved in drug trafficking, law enforcement went to his home with a certified narcotics canine and knocked at the front door. Officers saw movement inside, but no one a n-

∗ Of the Northern District of Illinois, sitting by designation.2 No. 14

- 1159

swered the doo r. The officers had the dog exa mine the front door for the scent of narcotics , and he alerted. After knoc king for fifteen minutes, the officers forcibly entered and s ecured the home, but they did not conduct a search until an officer swore out an affidavit and returned with a search

war rant. That warrant relied on the dog’s positive alert . The ensuing search revealed eleven pounds of methamphet ami ne in Gutierrez’s home. All of this occurred in November 2012. In 2013, however, the Supreme Court held that the use of a drug

- sniffing dog

on an individual’s porch is a Fourth Amendment search. Florida v. Jardines , 133 S. Ct. 1409 , 1414

– 16 (2013) . There is thus no question that the sniff in Gutierrez’s case is no lon ger permissible , f or the officers lacked a warrant (at th e time of the sniff ) and no exception to the warrant requirement ap plied ; moreover, a warrant based primarily on an impe rmissible sniff would be invalid. However, under Davis v. United States , 131 S. Ct. 2419 (2011), the evidence in this case should not be suppressed if “bind ing appellate precedent specifically authorize[d]” the officers’ conduct at the time they acted

. Id. at 2429 (emphasis omitted) . The district court found that our precedent did authorize the officers’ conduct

. W e agree , and therefore affirm

. I. Background In November 2012, officers received a tip from a conf idential informant that Gutierrez was involved in drug tra fficking and resided at a particular address in Indianapolis . A few days later , numerous law enforcement offic ers

— including an agent with the Dru g Enforcement Agency (“DEA”) and detectives with the Indianapolis Metro Drug Task Force (“Task Force”)

— converged on the home whereNo. 14

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Gutierrez lived

. They brought a certified drug dog named Fletch with them. When officers knocked on the front door, they saw movement within the house but nobody answered

. Detective Sergeant Cline, a Task Force member, had Fletch examine the front door for the sce nt of narcotics. Fletch gave

a positive indica tion when he smelled the door. The officers continued to knock, and af ter about fifteen minutes of r eceiving no re sponse, the y were instructed by the Marion County Prosecutor to enter and secure the home. They then forc ibly entered and conduct ed a sweep for occupants. Sometime a fter the officers entered the home, Detective Se rgeant Cline left to obtain a search warrant. In his s earch w a rrant a ffidavit, Cline identified the informant’s tip, the knock

and

- talk attempt, and Fletch’s positive indication at the door as bases for the warrant. A state c ourt magistrate found probable cause and issued the search war rant.
After entering the home , officers found Gutierrez and Cota , both of whom were tenants, in bed in separate rooms. Gutierrez and Cota were immediate ly handcuffed and brought to the kitchen. However, the actual search did not begin until the warrant ar rived at the residence. D uring the search, DEA Agent Schmidt found a black duffel bag co ntaining 11.3 pounds of methamphetamine in the attic. Both defendants were charged i n December 2012 with a single count of possession with intent to distribute over 50 grams of methamphetamine, in violation of 21 U.S.C. § 841(a) (1).
In March 2013, the Supreme Court decided Florida v. Jardines , 133 S. Ct. 1409 (2013), which held that a drug

- dog’s sniff on the cu rtilage of a home is a Fourth Amendment “search

. ” Id. at 141 4

. Two months later , Gutierrez filed a m otion to suppress, arguing that law enforcement’s investig a-4 No. 14

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tion and conduct outside his home constituted a search for which a warrant was required, and that any evidence reco vered du ring the subsequent search should be suppressed. The district court denied the motion

. Citing Jardines , t he
court agreed that the dog sniff was a search that vio lated the Fourth Amendment. However, the court determined that the “good

- faith” exception to the ex clusionary rule applied.

T h e good

- faith exception provides that the exclusionary rule does not apply where police officers reasonably and in good faith believe that their conduct is lawful, such as rel iance on a warrant later found to be invalid. United States v. Leon , 468 U.S. 897 , 922 (1984)

. This exception applies , among other circumstances, when an officer conducts a search in reliance on then

- binding appellate precedent. See Davis , 131 S. Ct. at 2429

. The district court determined that, under a ppellate precedent that was binding at the time of the dog sniff, “ officers were not only lawfully at the front door of D efendants’ home but at that time the dog s n iff did not const itute a search under the Fourth Amendment. The officers, and the magistrate that issued the warrant, relied upon this precedent in good faith, and the purpose of the exclusionary rule would not be effectively advanced in this particu lar case.” T he refore, the district court declined to suppress the evidence seized in the search . The court separately found that the officers’ entry prior to obtaining the search warrant was not a Fourth Amendment violation, because under Se venth Circuit p recedent, “officers who enter and seize a home to preserve the status quo while waiting for a search warrant do not commit an independently sanctionable violation of the Fourth Amendment so long as they had probable cause at the moment of entry and the sei zure is not unreasonably long.” United States v. Etchin , 614 F.3d 726, 734 (7th Cir. 2010)No. 14

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(citing Segura v. United States , 468 U.S. 796, 798 (1984)).
Gutierrez then pl ea d ed guilty , but his plea agreement permit s him to appeal the district court’s denial of his su ppression motion. The court sentenced him to the mandatory minimum, 120 months’ im prisonment

. After Gutierrez ple a d ed , the district court dismissed the indictment against Gutierrez’s co

- defendant, Jose Cota, on the government’s motion.
II. Discuss ion In reviewing the denial of a motion to suppress, we r eview the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Bernitt , 392 F.3d 873, 876 (7th Cir. 2004).
A. Fourth Amendment principles
The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers , and e ffects, against unreasonable searches and seizures ,” and su bject to “few exceptions,” it requires officers to obtain a wa rrant before searching a h ome

. Kyllo v. United States , 533 U.S. 27, 31 (2001). This protection extends to the home’s curt ilage

— the area immediately surroundin g and associated with the home. California v. Ciraolo , 476 U.S. 207, 21 2

– 1 3 (1986)

. “A ‘search’ occurs when an expectation o f privacy that society is prepared to c onsider reasonable is infringed, ” United States v. Jacobsen , 466 U.S. 109, 113 (1984), or when the government engages in a n unlicensed physical intrusion of a constitutionally protected area in order to obtain info rma tion , Jardines , 133 S. Ct. at 1414

– 15

. The next relevant principle is the exclusionary rule , which forbids the use of unlawfully obtained evidence at tr i-6 No. 14

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al

. As late as 1971, the Supreme Court concluded that a Fourth Amendment violation automatically led to exclusion of the improperly obtained evidence. See Whiteley v. Warden
, Wyo. State Penitentiary , 401 U.S. 560, 568

– 69 (1971)

. However, the Court shifted its approach thereafter, explaining that the exclusionary rule is a “judicially created remedy , ” not a pe rsonal constitutional right. United States v. Calandra , 414 U.S. 338, 348 (1974). A pplication of the exclusionary rule de pends

on weighing the costs and benefits in each case . Its benefit is deterring police misconduct, Leon , 468 U.S. at 9 16; but on the cost side of the ledger, “[e]xclusion exacts a heavy toll on both the judicial system and society at large,” as it often “suppress[es] the truth” and risks “set[ting] the criminal loose in the community without punishment , ” Davis , 131 S. Ct. at 2427. Thus, exclusion is the option of “last resort,” but it tends to be merited when police exhibit “deliberate, reckless, or grossly negligent disregard for Fourth Amen dment rights.” Id. (citations omitted). E xclusion does not a pply in several circumstances, includ ing when police conduct a search in objectively reasonable, good

- faith reliance

on “binding appellate precedent

. ” Id

. at 2429.
In Davis , the officers did just that. They conducted a ro utine traffic stop, lawfully arrested the driver and passenger, and then searched the car, where they found evidence of an additional, unrelated crime. Id

. at 2425. Governing Eleventh Circuit precedent permitted this car search at the time, but while Davis’s case was on direct appeal, the Supre me Court found this sort of car search unconstitutional. See Arizona v. Gant , 556 U.S. 332 , 335 (200 9 ). Nonetheless, when Davis’s appeal reached the Court, it held that exclusion was ina ppropriate: “when binding appellate precedent specifically authorizes a particular police practice, we ll

- trained officersNo. 14

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will and should use that tool to fulfill their crime

- detection and public

- safety responsibilities. An officer who conducts a search in reliance on binding appellate precedent does no more than act as a reasonable officer would and shoul d act under the circumstanc es. ” Davis , 131 S. Ct. at 2429 (citations , brackets, and internal quot ation marks omitted). In light of Davis , the evidence in Gutierrez’s case should not be suppressed if binding appellate precedent authorized the officers’ cond uct. We therefore proceed to consider our relevant precedent, United States v. Brock , 417 F.3d 692 (7th Cir. 2005).

B. Seventh Circuit precedent
In Brock , law enforcement executed a search warrant at David Brock’s home at 3375 Payton Avenue in Indianapolis, where they found drugs. Brock was not home, but three ot her individuals were . When the police questioned them, one of them said that he lived next door at 3381 Payton Avenue, and that he watched over both houses. This man said that Brock rented a room at t he 3381 residence, which B rock used as his “stash house.” He also told the police that Brock transported methamphetamine between the two residences, and was storing 16 to 17 pounds of methamp hetamine in his

room at 3381. Finally, this man gave the police a key to 3381, and consented to a search of the common areas of that res idence. The 3381 residence consisted of a kitchen, a living room, and three locked bedrooms. One bedroom was locked and had a sign on the door that read, “Stay Out. David.” An officer w ith a drug

- sniffing dog, Yoba, was called to 3381 to corroborate the presence of narcotics. Yoba alert ed while sniffing just outside Brock’s bed room. Based on all of th ese facts (including Yoba’s alert), an officer sought a warrant,8 No. 14

- 1159

which a magistrate issu ed. Officers then forcibly entered Brock’s room, where they found 17 pounds of methamphe tamine and one pound of cocaine. Brock moved to suppress the evidence, arguing that the dog sniff outside his locked bedroom door constituted an unlawful warrantless se arch, and that the warrant that was issued in reliance on the sniff violated his Fourth Amendment rights. Id. at 69 3

– 9 5. We a ffirmed the denial of his motion to suppress.
Brock relied on the numerous Supreme Court decisions holding that a drug

- dog sniff does not constitute a search for Fourth Amendment purposes because it reveals only the presence or absence of narcotics and therefore implicates no legitimate privacy interest. Id. at 695 (citing Illinois v. Caballes , 543 U.S. 405 , 408

– 09 (2005) (do g sniff of a car during a traffic stop); Indianapolis v. Edmond , 531 U.S. 32 , 40 (2000) (dog sniff at drug interdiction checkpoint) ; United States v. Jacobsen , 466 U.S. 109 , 123 (1984) (chemical field test of a substance found inside a package); United Sta tes v. Place , 462 U.S. 696 , 707 (1983) (dog sniff of a tra veler’s luggage in the airport) ). We acknowledged that, unlike those cases, the dog sniff in Brock’s case occurred in his home . But we rejected Brock’s reliance on Kyllo v. United States , 533 U.S. 27 (2001) , which involved a thermal imaging search of the defendant’ s home

. The Kyllo Court had emphasized that the use of a thermal imaging device revealed both lawful and unlawful conduct , so we reasoned that a dog sniff was different because the Court h ad repeatedly explained that a dog sniff detected o nly contraband and was not even a Fourth Amendment

“ search

. ” See, e.g. , Place , 462 U.S. at 707 (“ [T] he canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the info rmation is obtained and in the content of the information r e-No. 14

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vealed by the procedure. Therefore, we conclude that

... e xposure of respondent’s luggage

... to a trained ca nine ... did not constitute a ‘search’ within the meaning of t he Fourth Amendment. ”).
Brock therefore held that “the dog sniff inside Brock’s re sidence was not a Fourth Amendment search because it d etected only the presence of contraband and did not provide any information about lawful activity over which Brock had a legitimate expectation of privacy.” 417 F.3d at 696. 1 We fu r ther explained: “Critical to our holding that the dog sniff in this case was not a Fourth Amendment search is the fact that police were lawfully present inside the common areas of the residence with the consent of Brock’s roommate.” Id. at 697.
C. Brock remained good law at the time of the search in this case
Brock is no longer good law; Jardines expressly held that a drug

- dog ’s sniff on the curtilage is a Fourth Amendment search for which a warrant is typically required. 133 S. Ct. at 1414 . But that does not necessarily help Gutierrez, for the question here is whether Brock was good law at the time of the search in this case. Gutierrez contends that it was not. He argues that Jardines itself did not change the law, but merely acknowledged a change that had already occurred in United States v. Jones , 132 S. Ct. 945 (2012) , which was de cided ten months before the search of Gutierrez’s home. However, we

1 We noted that our holding was consistent with the majority of our si ster circuits’ opinions in dog

- sniff cases

. S ee Brock , 417 F.3d at 696 (collec ting cases)

.10 No. 14

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conclude that Brock remained good law after Jones and was
not effectively overruled until Jardines

. In Jones , the Court held that the government violated the Fourth Amendment by attaching a GPS tracker onto a su spect’s car without a valid warrant and without the suspect’s
consent. See 132 S. Ct. at 949. Four concurring j ustices would have examined the case solely under the reasonable expect ation of privacy rubric from Katz v. United States , 389 U.S. 347 (1967) , and they criticized the majority’s approach as “u nwise” and as having “little if any support in Fourth Amendment case law.” 132 S. C t. at 958 (Alito, J ., concurring in the judgment). But the majority concluded that, in a dd ition to the Katz test, the Fourth Amendment incorporated a

common

- law trespass test, so that a common

- law trespass into a constitutionally protected area could itself violate the Fourth Amendment. Id. at 949

– 5 1

. Nothing in Jones called into q uestion the underlying premise of Caballes and Place

— and thus of Brock

— that an i ndividual has no legitimate expectation of privacy in contr aband, and therefore that a drug

- dog’s sniff is not a Fourth Amendment search. Moreover, the Court had previously emphasized that dog sniffs were “ sui generis ,” Place , 462 U.S. at 707, suggesting that doctrinal changes to other Fourth Amendment principles might have no effect on this unique

area. Furthermore, less than a year before Jones , the Court no ted that it is unproblemat ic for “law enforcement officers who are not armed with a warrant [to] knock on a door” of a home , including for investiga tory purposes; in do ing so, they “do no more than any pri vate citizen might do.” Ke ntucky v. King , 131 S. Ct. 1849 , 1862 (2011) ; see a lso 1 W AYNE R.No. 14

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L A F AVE , S EARCH & S EIZURE : A T REATISE ON T HE F OURTH A MENDMENT § 2.3(e), at 592

– 93 (4th ed. 2004) (“The route which any visitor to a residence would use is not private in the Fourth Amendment sense, and thus if police take that route for the p urpose of making a general inquiry or for some other legitimate reason, they are free to keep their eyes open

.. .. ”). Jones did not call into question any statements in King

. Thus, before Jardines , the Court had explicitly allowed police officers both to use dog sniffs and to enter the curt ilage to seek information

— both without a warrant. (Indeed, both actions remain permissible even after Jardines , so long as they are done separately.) The Court had never suggested that, when combined, these individual ly lawful actions might become unlawful. The foregoing analysis is sufficient to determine that Brock remained good law at the time of the search of Gutierrez’s home, b ut we find that Jardines itself further rei nforces our conclusion. Jardines ’s holding

— th at the use of a drug dog on the defendant’s porch was a Fourth Amen dment search

— was based on an implied license theory. The Court reasoned that there is an implied license to approach the door, knock, and wait briefly to be received

— but th is l icense has a limited scope , which is b ased on cus tom. 133 S. Ct. at 1415

– 16. Specifically, this license i s limited in space, time, and purpose. Id. And the key in Jardines was purpose: there was no “customary invitation” to use “a trained police dog to explore the area around the home in hopes of disco vering incriminating evidence.” Id. at 1416. The Jardines Court therefore rejected the state’s argument

— which echoed Brock

— that cases like Caballes , Jacobsen , and Place permitted12 No. 14

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the police to use warrantless dog sniffs, even on the curt ilage, because the technique did not infringe any legitimate expectation of privacy.
The Jardines Court noted that “[j]ust last Term, ” in Jones ,

“ we considered an argument much like” Florida’s reason able

- expectations argument

. Id. at 1417. Thus, Gutierrez co ntends, Jardines itself recognized that Jones abrogated Brock ’s rationale. We disagree. Significantly, there was no reliable way to predict, after Jones , that the dispositive question would be the scope of the implied license

— or that the i mplied license would exclude dog sniffs. See Orin S. Kerr, The Curious History of Fourth Amendment Searches , 2012 Sup. Ct. Rev. 67, 69 (2012) ( observing

— after Jones but before Jardines

— that “implementing the Jones trespass test will r equire courts to res olve its scope. ... C ourts called on to inte rpret the trespass test must do so with little in the way of hi story or precedent to guide them.” ). As the four dissenting justices in Jardines pointed out, “in the entire body of co mmon

- law decisions, the Court has not found a single case holding that a visitor to the front door of a home commits a trespass if the visitor is accompanied by a dog on a leash. On the contrary, the common law allowed even unleashed dogs to wander on private property without committing a tre spass.” 133 S. Ct. at 142 4 (Alito, J., dissenting) ; see also id. at 1420 (arguing that the Court’s decision “is based on a put ative rule of trespass law that is nowhere to be found in the annals of Anglo

- American juris prudence”). For all of these reasons, we find that Brock remained good law after Jones

. D. The officers satisfied the good

- faith exception here In light of the foregoing, this case qualifies for the “bin ding appellate precedent” exception, because this case is e x-No. 14

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actly li ke Brock in all important respects . First, as in Brock , police had a trained drug dog conduct a brief sn iff at the door to a living space

. See Brock , 417 F.3d at 693. The fact that one dog sniff occurred outside the front door to Gutierrez’s home, and the other occurred outside the door to Brock’s
room, is immaterial. In both cases, police were lawfully pr esent at the time of the search: in Brock , a cohabitant gave consent to a search of the common areas of the residence, see United States v. Matlock , 415 U .S. 164, 171 (1974); and in Gutierrez’s case, the police walked up to the front door and knocked, which is lawful, see Jardines , 133 S. Ct. at 141 6 ; King , 131 S. Ct. at 1862

. In both cases , the officers t hen brought out their drug dog

— now a constitutional violation under Jardines , b ut lawful at the time given Caballes and Place

. In other words, a t the time of both sniffs, there was no legal distinction between a “knock

- and

- talk” and a “knock

- and

sniff .” Furthermore, in both Brock and Gu tierrez’s cases, the police sought and obtained a warrant based in part on the positive dog alert. See Brock , 417 F.3d at 694. And in neither case did the police conduct a search until they were armed with a warrant. See id. This case and Brock are on all fours. It is true, of course, that unlike in Brock , the police in Gutierrez’s case entered the home and conducted a brief sweep before they had a warrant. Yet our precedent permits as much to preserve the status quo while officers obtain a warrant, see Etc hin , 614 F.3d at 734, and the district court found it “undisputed that the actual search did not begin u ntil the warrant arrived back at the residence.” T h us, th is m ino r f actual distinction does not make a legal difference. Another unimportant factual distinction is the fact that the officers in Gutierrez ’s case knocked at the front door for14 No. 14

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about fifteen minutes

. W hile it may rise to a constitutional violation if officers linger at the door too long, see , e.g. , Jardines , 133 S. Ct. at 1415, it is undisputed that (1) the offi cers were allowed to do a “knock

- and

- talk,” where they a ttempt to get information voluntarily from a suspect, see id. at 1416 ; and (2) the officers here used Fletch shortly after the knock

- and

- talk attempt , and he quickly alerted. Only then did the officers allegedly “linger

. ” The crucial moment was the dog sniff , because the positive alert formed the primary basis of the search warrant; and under Brock , the officers (and Fletch) were lawfully where they we re at the time of the sniff. Thus, even if there were a “lingering” violation in this case , it would be harmless. In sum, b ecause binding appellate precedent permitted law enforcement’s conduct at the time it took place , th is case falls within Davis ’s exce ption to the e xclusionary rule

. In so holding, we reject Gutierrez’s contention that a lleged official misconduct in t his case merits exclusion of the evidence

. He raises two arguments. The first is that the offi cers in this case acted in obvious disregard of established trespass principles. As noted above, however, Supreme Court precedent clearly (if separately) permitted knock

- and

talks and drug

- dog sniffs, and our precedent clearly permi tted lawfully present off icers to conduct a dog sniff at the threshold of a living space

. I t is too simplistic to suggest, as Gutierrez does, that Jones and Jardines simply reaffirmed the principles of Olmstead v. United States , 277 U.S. 438 (1928). Olmstead (and its progeny) turn ed on a straightforward point: “[t]here was no entry” into defendants’ homes or o ffices, so the Fourth Amendment was not implicated. 277 U.S. at 464. Jardines was more nuanced: it forbade entering theNo. 14

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curtilage for the purpose of doing a dog sniff, but it did not forbid entering the curtilage for the purpose of knocking on the door. Unlike Jardines , Olmstead never considers purpose. Because the reasoning in these two cases is quite different, Gutierrez’s first argument is unpersuasive

. The gravamen of his second argument is that s ix m onths after the search of Gutierrez’s home, DEA Agent Schmidt submitted an affi da vit that was inconsistent in certain r espects with his own (and with Detective Sergeant Cline’s) contemporaneous reports of the search in this cas e. For i nstance, in his affidavit, Schmidt claimed that Gutierrez and Cota had g i ve n verbal consent to search the home, but the district court found that Gutierrez was never asked for co nsent and Cota expressly de nied consent. Gutierrez argues that Schmidt’s alleged misrepresentation supports exclusion her e, as Schmidt exhibited “deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights.” Davis , 131 S. Ct. at 2427 (citation and internal quot ation marks omitted)

. Th e inconsisten cies after the fact give us some pause, but as noted, the officers acted in strict compliance with binding precedent

. Furthermore, they secured the premises immediately but did not conduct a search until they had obtained a then

- valid search warrant. Finally , the district court wisely held an evidentiary hearing and r esolved factual disputes in Gutierrez’s fa vor

. T his somewhat odd situa tion, which ar o se after the fact , does not constitute a deliberate or reckless Fourth Amendment violation.
III. Conclu sion

Because bindin g appellate precedent permitted law e nforcement’s conduct at the time it occurred, we A FFIRM the district court’s denial of Gutierrez’s motion to sup press.